Self-test questions: Specific Remedies and Restitutionary Remedies

. In relation to a claim for the contract price, which one of the following statements is not true?

The claim is not subject to the test of remoteness.

The claim is not subject to the mitigation principle.

A liquidated damages clause in the contract does not apply to the claim.

The claim arises from a breach of contract by the defendant.

The purpose of the claim is to enforce the defendant's contractual obligation (the promise to pay).

. Which one of the following statements relating to enrichment by subtraction is not true?

A party may recover money paid in anticipation of a contractual performance on the ground of total failure of consideration only when the other party has, in breach of the contract, totally failed to render the stipulated performance.

Where a party has received nothing under the contract but the other party has started performance, the first party is generally not able to recover any money paid in advance on the ground of total failure of consideration.

Where a supplier has fully performed its contractual obligation to provide a service under a contract with detailed contractual terms and the customer refuses to pay the fixed contract price, the supplier cannot claim a quantum meruit.

In some circumstances, even if there has been no breach of contract, a party may recover money paid in anticipation of a contractual performance that the other party has failed to provide.

Where 'consideration' is used in the sense of giving rise to a restitutionary remedy upon total failure, it must be understood as referring to performance of whatever was promised in the agreement.

. Which one of the following statements most accurately describes the reason why an order of specific performance was granted by the House of Lords in Beswick v Beswick [1968] AC 58?

There was no substitution available for the nephew's performance under the contract.

The contract between the uncle and the nephew was one for the sale of land.

The uncle's estate suffered no loss from the nephew's breach of contract and was only entitled to nominal damages.

The uncle's estate was entitled to claim damages from the nephew, but the damages were difficult to quantify.

It involved the performance of a negative undertaking.

. Which one of the following statements is true?

An account of profits is generally available as a remedy for a serious breach of contract.

Where a promise to provide a service is given in exchange for a promise to pay a fixed price and the latter promise has been partly performed before any service is provided, there will be no total failure of consideration and thus no restitution of such payment is possible.

Negotiating damages represent the sum that the claimant could hypothetically have received in return for releasing the defendant from the obligation which it failed to perform.

A non-breaching party is entitled to an order of specific performance once it proves that damages are an inadequate remedy for the other party's breach and where the contract is not one that cannot be specifically enforced.

A quantum meruit cannot be awarded when there is no contract between the parties.

. Photo Me! was engaged by Fiona to take the official photographs during Fiona's birthday celebrations. In breach of its contractual obligation to deliver Fiona's portrait photographs taken during her celebrations, Photo Me! is attempting to resell the photographs to a third party. Which one of the following most accurately describes the parties' legal position?

The photographs are unique to Fiona with no substitute available, so it is likely that specific performance will be awarded.

It is unlikely that Fiona will be awarded specific performance because it is generally unavailable as a remedy, but she will be entitled to an account of any profits made by Photo Me!

Fiona's most likely remedy is substantial damages, awarded according to her lost expectation.

Fiona's most likely remedy is substantial damages, awarded according to the disappointment and distress she will have suffered.

Fiona is entitled to damages on the basis of a total failure of consideration.

. Which one of the following statements is consistent with the decision of the House of Lords in Attorney-General v Blake [2001] 1 AC 268?

The owner in Ruxley Electronics and Construction Ltd v Forsyth [1996] 1 AC 344 might have recovered from the constructor the latter's savings in costs in building the swimming pool in accordance with the decision in Attorney-General v Blake.

An account of profits for breach of contract was available only when the breach involved the use of, or interference with, a property interest of the non-breaching party.

One of the reasons for allowing an account of profits in that case was the deliberate and repeated breaches by the spy, which caused unquantifiable damages.

If a case fell within the 'exceptional circumstances' identified by the House of Lords, it followed that an account of profits should be awarded and a court had no discretion.

An account of profits should be awarded in the case of a serious breach of contract where a court is of the view that a contract-breaker has behaved unconscionably.

. Atif enters a contract to sell 1,000 tons of steel to Kane and then refuses to proceed with the transaction. Because there is a worldwide shortage of steel, Kane applies for an order of specific performance. Which one of the following most accurately describes the parties' legal position?

Kane can obtain the equitable remedy of specific performance as of right.

The worldwide shortage of steel is irrelevant to the question whether specific performance will be awarded.

The worldwide shortage of steel probably means the contract is frustrated.

There is no burden on Kane to show that damages would be an inadequate remedy, as the matter is at the discretion of the court.

Specific performance will probably be awarded by the court.

. Sid enters a contract to grant a lease to Anisa in return for Anisa's promise to repair the premises personally. When Anisa has completed 80 per cent of the repair work, Sid refuses to proceed with the transaction and denies Anisa access to the premises. Anisa applies for an order of specific performance. Which one of the following most accurately describes the parties' legal position?

Specific performance will probably be precluded by the principle of mutuality.

Specific performance will not be awarded as it would result in hardship for Sid.

Specific performance will probably be awarded.

Specific performance will be denied on the basis it would interfere with Sid's personal liberty.

Specific performance will be awarded as of right, unless Sid can prove that it should not be awarded on the facts.

. Sapreena contracted with Brett Ltd for the purpose of Brett Ltd's installing a new kitchen at Sapreena's home. The specification included the installation of expensive mahogany wood cabinets. Prior to installation, Brett Ltd was awarded a lucrative contract to renovate a kitchen at another property and used the cabinets that were due to be installed in Sapreena's kitchen for this separate lucrative contract; instead installing cabinets in Sapreena's kitchen that were of an inferior quality. Sapreena claims to be entitled to the profits Brett Ltd obtained under the other contract. Which one of the following is true?

A court is likely to award Sapreena negotiating damages, based on how much it would have cost Brett Ltd to secure Sapreena's agreement to accept the inferior quality cabinets.

A court is likely to award specific performance and an account of profits.

A court is likely to award an account of profits because of the intentional nature of the breach by Brett Ltd.

A court is not likely to award an account of profits.

A court is likely to award an account of profits as Sapreena and Brett Ltd have a quasi-fiduciary relationship, unless Brett Ltd can prove that such a remedy should not be awarded.

. Jas, an employee, is seeking a prohibitory injunction because of what she alleges to be a breach by her employer, Fos Ltd, of its obligation not to employ anyone other than Jas as its manager. Which one of the following is true?

A court is likely to exercise its equitable jurisdiction to award specific performance.

Such a claim by Jas is unlikely to succeed in a contract of personal service.

A court is likely to award a prohibitory injunction to preclude the appointment of anyone else to the position.

A court is likely to award a mandatory injunction to require that the employer appoints Jas to the position.

A court is likely to award a prohibitory injunction to preclude the appointment of anyone else to the position, followed by specific performance to require that the employer appoints Jas to the position.

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